The Child and Family Agency (CFA) made an application for a Full Care Order in respect of an unaccompanied minor who arrived in Ireland last summer with a note saying “I intend to apply for refugee”. The District Court made the Order until the young girl reached 18 years of age.
Earlier the court had extended an Interim Care Order when a social worker informed the court that the child had no parent or guardian in the State. The child’s father was deceased and there had been no contact with the girl’s mother. He told the court that the social work department had not undertaken family tracing as they believed this could pose a risk to the child’s family.
The girl had been in the same residential assessment unit for six months but was aware that this placement would end shortly and was “excited for the next chapter”. The fostering social worker had identified what she believed to be “a perfect match for her”. It would offer long term foster care and the carer had a good existing relationship with schools in the area. There was no indication at this point that it would not be approved.
The social worker indicated that the transition between the residential unit and the foster home would be handled carefully, it will be “slow and somewhat at her own pace”. The girl was making progress with her English language skills.
The CFA solicitor informed the court that there was no record of the girl having been in another European country and said a protection application had been lodged on her behalf, an application for asylum. She was now awaiting a date for the substantive interview. Her application had been lodged under newly commenced legislation, the International Protection Act 2016. Her application was the first for an unaccompanied minor submitted under new legislation, the CFA purposely waited to enable her application to go into the new system.
The guardian ad litem (GAL) also gave evidence. She said the girl seemed to be very happy, she was involved in extra curricula activities, her English language skills were progressing hugely and she was very capable academically. She hoped to remain in Ireland, was very enthusiastic to be moving to a family placement and wanted to go to mainstream school and on to third level. The GAL said the girl would need to be able to access English language support in her new school. The GAL said the girl engaged extremely well with her and was good at one-to-one conversations.
She was anxious and nervous at the mention of the court, the judge or State authority. The GAL had reassured her that this was a special court focused on her needs as in Ireland all children must have an adult/guardian appointed to their care until they turn 18 years. The GAL indicated that the girl did not wish to visit the court.
The judge asked if the GAL remained happy that the child was the age she said, the GAL had no change of mind on this matter. The judge adjourned an application under section 32 in relation to the presumption and determination of the age of the child to be heard on the same day as the Care Order application. The judge remarked that in the special circumstances of this case it was not possible due to safety concerns to put the parent on notice of these proceedings so the order was being made ex parte.
The judge asked what impact if any the outcome of her protection application might have on these proceedings and if the Care Order proceedings should be held after her application for protection had been determined. The CFA social worker replied that if we had to wait for her justice application to be determined we would be “sitting on our hands waiting for a separate statutory agency”. He continued: “If she fails in her application we will be resisting any application to remove her from the State before she turns 18 years. Care planning is a priority.”
The judge granted the extension to the Interim Care Order in circumstances where the child had no parent or guardian in Ireland to care for her and also made the usual medical directions given that the girl was under 16 years of age. The court set a date in seven weeks’ time for a Care Order hearing.
At this hearing the Court noted that there were two preliminary issues which needed to be dealt with prior to the substantive Full Care Order application. The first issue was service of the proceedings on the child’s birth parents and the second issue was age determination.
Service
Under the rules of the District Court, the respondent parents should be served with the proceedings and be allowed the opportunity to contest an application for a Care Order. However, because of concerns relating to the safety of both the child and her parents, it was decided that looking for the parents or tracing their location was not in the best interest of the child and might put the parents in danger. The child was disappointed but believed that it would not be safe to conduct a tracing at this time.
The CFA asked the Court to proceed with the hearing on the basis that under Section 24 of the Child Care Act 1991, the welfare needs of the child outweighed any service issues. The solicitor for the CFA said that the Agency would remain in touch with the Red Cross and if any contact was made by the parent(s), then any procedural unfairness could be corrected. The solicitor for the CFA pointed out that the judge who made the initial Interim Care Order made a ruling that carrying out any tracing of the child’s parents could lead to a danger to the child and to the child’s family.
The young girl’s allocated social worker, who had remained with the child since her arrival last year said there had been no communication between the child and her parents, including no social media contact. The social worker had contacted the Irish section of the Red Cross and the Family Links Liaison Officer. The Family Links Liaison Officer recommended that no further steps be taken in relation to tracing until such a time as the situation changed in the country of origin.
The judge told the CFA that it would be useful to have the current situation in the country of origin on file for the benefit of the child, so that she would know that if the situation changed we could trace the family.
The Court decided to proceed on the basis of the decision in HSE v. A & B (16th December 2014) which provides that Section 24 of the Child Care Act 1991 enables a court to proceed to make a decision without the parent being notified, where there could be a risk to the parent(s) and/or the child. The Court directed that the CFA continue to monitor the situation and to re-enter the matter if the tracing of the family is possible, so that the parent(s) will have the opportunity to address the Court.
Age Assessment
The social worker had particular expertise in the area of age assessment and it was his opinion that a formal age assessment was not necessary in circumstances where the child gave a date of birth on her arrival in Ireland and nothing had been said since then to contradict that date. The social worker said the default position is to give the child the benefit of the doubt. The social worker pointed out that the child was assessed by the International Protection Office (IPO) when she first arrived and if there was an issue in relation to age, the IPO would have referred the child to the CFA for a formal age assessment.
The social worker gave evidence that the child’s height and demeanour all indicated that she was the age provided and he was of the opinion that it would be very difficult to keep up a façade since last summer. The social worker said that the child had to give a narrative to various professionals and that narrative had always been consistent. He also said that he had been continuously carrying out informal age assessments with the young girl since her arrival and stated that he had no concerns in relation to her age.
The judge was concerned that the child might be entitled to a formal assessment. The social worker explained that a formal age assessment would not be in the child’s best interest. He outlined that the assessment would include an interview with two social workers and the child would be brought through her narrative, with a focus on markers for specific dates.
The social worker said there might be several interviews and the judge asked: “What adverse consequences would there be by doing a formal assessment?” The social worker responded that he was vehemently against it, because the child had suffered enough and to put her forward for an interview by two strangers would be traumatic for the child. The guardian ad litem agreed with the opinion of the social worker.
The judge asked if the social worker would be prepared to do a formal assessment in the future if the child required or requested it and the social worker said that he would be approaching everything in the child’s best interest.
The judge said that she would accept the social worker’s professional and expert opinion and made an order under Section 32 of the Child Care Act 1991 finding that the date of birth provided on arrival was the child’s date of birth. The judge further directed that the template which was used by the CFA when conducting formal age assessment be put on the child’s file and further directed that the social worker conduct a formal assessment in the future if the child needed such an assessment.
Full Care Order Application
The solicitor for the CFA explained that the child had been residing in a residential care home since her arrival. Ordinarily, children are kept there for six months in order to prepare them for mainstream schooling. The social worker gave evidence that the child wanted stability and security and was crying out for a friend of her own age. The social worker said that the CFA needed to create a home for the child and plan on the basis that she would never have access to her family.
The CFA had found a placement which was closer to adoption than fostering. The foster carer wanted a long term placement and the child was really looking forward to becoming part of a family. The child had also visited the town and the school and had had an overnight stay with the intended foster carer, which was very positive.
The judge asked if there was going to be a lot of support built into the placement and the social worker responded that the child was going to need support in school, especially with English and that he would take advice from the school. In terms of psychology or counselling, the social worker was of the opinion that while those supports were available, the child was happy and was doing very well. The social worker said that he “didn’t see the need for [the child] to be engaged in counselling when [the child] is not exhibiting a need for that at the moment”. The social worker was of the opinion that there were enough adults around the child to indicate if she started to struggle in the future. The social worker acknowledged that there may be some real bereavement issues in the future regarding the child’s family and culture.
The barrister for the GAL asked if the social worker had any difficulty coming back to court if any of the statutory requirements of the CFA such as aftercare placement, reviews, change of placement etc were not met. The social worker said he had no difficulty with the matter being re-entered in those circumstances.
The GAL was very complimentary of how the CFA has cared for the unaccompanied minor, including the level of work they had done in relation to her independence and English. The GAL supported the foster care placement and the decision of the social worker not to carry out a formal age assessment. The GAL gave evidence that the child found interviews of a formal nature stressful and the GAL was afraid that the child might think she was not being believed.
In relation to tracing the child’s parents, the GAL said that as recently as last week they were talking about tracing and the child said that she was disappointed but believed that it would not be safe to conduct a tracing. The child was hopeful that if things change in the future, then tracing could be carried out. The GAL was confident that the CFA would conduct tracing if and when they could.
The GAL agreed that “now might not be the right time for the child to access therapeutic supports” and emphasised that the social worker said the child would have access to those supports if and when she needed them. The GAL said that a lot of work had gone into the foster care placement and that while a foster placement is not guaranteed after 18 years of age, the foster carer did intend to provide support into the future and this would be a huge support to the child.
The GAL gave evidence relating to the views of the child and said that she was very aware what a Care Order meant and the purpose of the Full Care Order. The GAL said the child was in agreement with the Order and understood that it was necessary. The child did not want to come to court or write a letter to the court.
Order
The court made a Full Care Order to the age of 18 years and said that the state needed to be a parent in the child’s particularly sad circumstances. The judge was treating the child’s placement as the new foster placement and directed that the matter be re-entered and the GAL re-appointed if: the placement was changed; a social worker was not allocated for more than four weeks; there were no supports for the foster family or ongoing language and cultural supports broke down. The court also directed the CFA to provide counselling and support work in a time and manner in accordance with the child’s welfare.
